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Help Sheet

Writing a constitution

A constitution is a set of rules.

Even if you're not considering becoming a formally incorporated organisation, writing a constitution can be very helpful. It can clarify your principles and processes, and begin to articulate them and set them down together as a cohesive whole.

The constitution-making process can be used as a basis for the recording of group rules and processes that may have started to develop naturally. Then if you do decide to incorporate later on, you'll already have done some of the important work.

A smoothly working group doesn't need a constitution often. When people are generally getting on, you cut each other a certain amount of slack and tend not to look at the constitution much. If agreements break down, however, you need to know what the rules are, and it's then that you need a constitution.

Constitutions are about what structures you have, how people get on to them, and what powers they have when they're on. If your group is planning to take on tasks that are long-term, resource-intensive, and contentious, you need to have a constitution. If you're considering becoming incorporated, in particular, you're legally required to have a constitution.

If you want to be incorporated under the Victorian Associations Incorporation Act (1981), you have to look at the Model Rules that accompany it (and if you want to be a limited company or a co-operative, look at the rules that apply to them). You'll find that the Model Rules include provisions about many of the things you'd want to include - how committee of management (board) members are elected, for example, or how you organise a general meeting. That's quite helpful; designing constitutions can be a very fiddly business if you start from scratch.

You can change the model rules if you want to. It takes slightly longer to get yourself through the incorporation process, and it may cost slightly more, but if there's anything in there you think really doesn't fit your group you can write in your own version instead.

For example, the Victorian Model Rules say that on the Management Committee "Five members personally present … constitute a quorum for the conduct of the business of a general meeting." If you want your quorum to be three, or eight, you can write that in.

What you can't do is leave out any mention of what your quorum is. If you skip that bit, the law assumes that you really meant to follow the Model Rules' five, and behaves as if you had in fact said five even though you didn't.

There are a lot of necessary decisions that the Model Rules don't lay down; membership fee levels, for example, the powers of the chair, or staff-board relationships. As a general rule, if you don't have to put something into the constitution, don't; adopt it as a policy, but don't write it into the constitution. As we citizens of Australia know only too well, constitutions are very difficult to change - that's what they're for - and anything that you may want to change from time to time should be kept out of them.

There are also some things that are appropriate for some groups and not for others. You may want term limits for your committee of management members, for example (this ensures you have regular turnover, but it does also make it more difficult to fill your vacancies). You may want to reserve a certain proportion of the committee for particular categories of people - users, say, or carers. You may wish to provide for ex officio members - a staff rep, say, or the CEO. If you want to put these provisions into the constitution - if you want to bind the people who will come on to the committee in later years - you can do it. You should still, however, consider the alternative approach of doing such things by custom and agreement without writing them in specifically.

Policies and Standing orders

You'll want to adopt separately a set of Standing Orders to say how you run your meetings, and you'll want to decide on some governance policies to say how you see the relationships between the different parts of the organisation. Have a look at the Our Community Policy Bank - www.ourcommunity.com.au/policybank - for examples of these.

There are a couple of places where you will probably want to modify the Model Rules. There's no really appropriate slot in the Model Rules to put in your objects, for example - your mission and your goals. The Model Rules don't call for them, presumably because you've sent them in under separate cover as part of the incorporation process.

Without a touch of mission your constitution is going to be very dull indeed. This isn't in itself a bad thing. A constitution is not, except accidentally, an inspirational document. One Australian in a thousand has read the Australian constitution. One in ten thousand has read it all the way through, because it's very boring.

However, there are practical reasons why you do want your objects in the constitution. If you look at the Model Rules you'll see that all new members have to be approved by the committee of management. The rules don't, however, put any criteria in to guide the board in accepting or rejecting a new member, and this can be awkward if you for any reason don't want to admit them.

If you're an association for a particular group - people who have a disability of any description, say - it's relatively easy to write that in to the membership criteria. If, on the other hand, you're a group that's working in the interests of people with disability, that's less cut and dried. The only real guide is whether or not the new member is committed to the objects of the organisation: and if that's what you mean, it helps to have the objects included.

If there's no section number in the Model Rules where a statement of your objects seems to fit, put them in as a preamble. And specify in the membership section that applicants who are not in the opinion of the committee committed to the objects of the organisation are not eligible for membership.

Thinking Point:

You are active as a group in the first place because there are things that you as a group all believe in, so it might seem quite simple to spell out your objects. You may find it more difficult than you think.

You may find, when you start discussing these things, that you don't all agree on everything, and don't even agree on which exactly are the important things that you all have to agree on. Bring everybody into one room and thrash it out.

Even if you all agree on everything, that's not the end of it. There are other questions.

First, have you taken into account your possible development in the future? This may be all you want to do now, but is that likely to change? If you can foresee any likely (or even possible) developments as you grow and reach out, any causes that border yours that you might want to extend into, it's worth thinking about it now.

Is your formulation likely to be restrictive? Are there things that will seem like a good idea later that you won't be able to do? You can't foresee the unforeseeable, obviously, but try and take the long view.

Second, are there any reasons why you might like to phrase your mission statement differently? For example, the current tax laws don't encourage advocacy work. If you're sure that lobbying the government is the only way to go - and it often is - we're not suggesting that you change your goals just to fit into the law, but it's worth thinking about whether a more general wording might be more flexible in practice and close off fewer of your options.

For example, if you're a group that starts out with the idea of providing inclusion education to secondary school students, but you're also aware of the need for wider anti-discrimination advocacy, your group's preamble might refer to two broad aims: 'Educating the community in discrimination issues' and 'Increasing public awareness of discrimination and its effects'. This way, any activities you might want in the future to do, such as offering wider education to legal centres, policymakers, health providers, or educators in primary or tertiary settings, can be handled without having to rewrite the constitution, as can additional activities more broadly related to opposing discrimination apart from education.

If you're a small group, you can simply all get together around a table and thrash out these issues over tea and cakes. If you're a larger group, get the word out to all members and have a "constitution day". After you've discussed the issues and recorded your ideas, a working group can draft the constitution for your members to discuss further. Once it's agreed upon, it's written up and signed off on.

If you need to change it later, the instructions on how to do it are right there in the model rules.

An initiative of Department of Human Services, Developed & Managed by www.ourcommunity.com.au